Kishan Pal And Another vs State Of U.P. And Another
2016 Latest Caselaw 3637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 46
 
A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 19255 of 2016
 

 
Applicant :- Kishan Pal And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Pratibha Singh,Ashok Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the records.

The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the order dated 17.5.2016 passed by A.S.J. (F.T.C.), Etah in Criminal Revision No. 98 of 2015 ( Sri Yaspal Vs. State of U.P. And others).

Some background facts, in brief, are that opposite party no. 2 lodged an F.I.R. against the applicants and four unknown persons to the effect that on 25.7.2013 at about 8.00 P.M. when the wife of opposite party no. 2 had gone near the canal to attend the natural call, a Bollero car came and stopped near her from which the applicants alongwith four unknown persons alighted and on the gun point they took away her towards the side of the canal. There the applicant Kishan Pal and one unknown person committed rape with her. Thereafter they dragged her to the car and tried to take her away with them. When the victim resisted the accused Narendra shot fired on her abdomen by the country made pistol he was carrying. Hearing the alarm and the sound of firing, the brother of the complainant Yashveer and one villager Man Singh reached there and saw  in the light of torch all accused persons running away firing in the air. The victim (wife of opposite party no. 2) was taken to the District Hospital, Etah from where she was referred to Agra for better treatment. After she recovered a bit, her husband (O.P. No. 2) went to lodge the F.I.R. on 29.7.2013 but his report was not lodged. He sent a letter to the Superintendent of Police, Etah by registered post on 6.8.2013 but when no action was taken he moved an application under Section 156(3) Cr.P.C. before the court on 8.8.2016.

Under the orders of the court, case was registered and the statements of the victim under Sections 161 and 164 Cr.P.C. were recorded. However, after completion of the investigation, the police submitted final report in the matter.

Being aggrieved, the opposite party no. 2 moved a protest petition which was dismissed by the C.J.M., Etah vide order dated 18.5.2015 and the Final Report was accepted. The opposite party no. 2 challenged the aforesaid order of C.J.M., Etah by means of criminal revision which was decided by the learned Additional Sessions Judge/F.T.C., Etah on 17.5.2016 whereby the learned Additional Sessions Judge allowed the revision and set aside the order of C.J.M., Etah directing him to pass fresh orders on the protest petition in the light of observations made by the revisional court.

The accused applicants had challenged the legality and correctness of the order of learned Sessions Judge by means of this application under Section 482 Cr.P.C. mainly on the following grounds :-

1. The allegations against the applicants are false and the prosecutrix has implicated them due to enmity of the litigations regarding land dispute pending between them.

2. The complainant/opposite party no. 2 himself is a criminal against which proceedings under Section U.P. Goonda Act has been initiated.

3. The two eye witnesses named in the F.I.R. have not supported the prosecution case during their interrogation by the I.O. under Section 161 Cr.P.C.

4. The police had submitted final report after investigation as the case was found baseless.

5. The learned C.J.M., Etah has rightly accepted the final report and has rightly rejected the protest petition after considering the entire case diary. However, the learned sessions judge has set aside the order passed by the learned C.J.M. only on a technical ground that the learned C.J.M. has wrongly relied upon the objection filed by the accused persons against the protest petition while accepting the Final Report without keeping in view the legal position that the accused persons have no locus standi to raise objection at the stage of disposal of protest petition.

Per contra learned A.G.A. has opposed the application by contending that the learned Sessions Judge has passed a thoroughly, just, proper and legal order in the facts and circumstances of the case. Moreover, by the impugned order the Magistrate has only been directed to pass fresh orders on the protest petition filed by opposite party no. 2. Learned A.G.A. has submitted that it is settled law that accused has no locus standi to raise objections at pre cognizance stage.

Considered the submissions made by both the parties in the light of the background facts as discussed above.

In a landmark case of Pakhandu and others Vs. State of U.P. And another; 2001 (43) ACC 1096, a Division Bench of this Court has laid down as under :-

"Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:-

I. He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall given an opportunity of hearing to the complainant; or

II. He may take cognizance under Section 190(1)(b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

III. He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

IV. He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under thereafter decide whether complaint should be dismissed or process should be issued."

In the present case the Magistrate has accepted the final report submitted by the police. There is no doubt that the Magistrate was empowered to do so but at the same time it is clearly evident that while accepting the Final Report and dismissing the protest petition the learned Magistrate has not considered even the prima facie evidence available on record. Learned Magistrate has not discussed about the firearm injury sustained by the prosecutrix on her abdomen, who was pregnant at that time and has dismissed the protest petition without assigning any cogent reason only on the ground that no spermatozoa were found and the child in the womb was found alive. The order passed by the C.J.M., Etah also shows that he has discussed in detail the objections filed by the applicant Kishan Pal against the protest petition which is against the settled legal position that at the time of disposal of protest petition only prima facie case is to be seen and the accused has no locus to raise objection at this stage.

The learned revisional court, after considering the injury report of the prosecutrix according to which firearm wound was found on her left lumber region and also considering her statements recorded under Sections 161 and 164 Cr.P.C. in which she has fully supported the prosecution case, set aside the order passed by learned C.J.M., Etah by the impugned order..

Considering the facts and circumstances of the case, there appears no ground to quash the impugned order passed by learned Sessions Judge. This application is without any force and is liable to be dismissed.

The application is accordingly dismissed.

Order Date :- 28.6.2016

S.B.